EB5 Investors Magazine English Edition Volume 6, Issue 2 | Page 105

Officer. It slows the B1/B2 visa train! Unlike the B1/B2, with its on-line DS-160 form, there is also a lot of paper associated with E-2s that the assembly line for high volume visa adjudication cannot easily accommodate. E-2 visa, the E-2 is much more work. Therefore, whether an applicant gets due consideration may be a matter of chance, depending on the Consular Officer and his or her visa chief. On the other hand, I-526s are reviewed in an office set up to serve the I-526, I-924, and I-829. AOs deal with fewer applications, albeit much more paper. While a problematic I-526 can be considered by an AO over the course of a few days, Consular Officers are encouraged to decide cases fast, get rid of the waiting applicant, and move on to the never ending queue of prospective tourists. E-2 VISAS ARE DIFFICULT TO HANDICAP Consular Officers work in an up - or- out environment. E-2 and EB-5 adjudications hurt their numbers, and are eschewed as the type of thing that USCIS does; that is, E-2s are not promotion fodder at State. Of the EB-5 or the One can also make generalizations based upon historical trends in I-526 adjudication by IPO. However, this can be difficult to do for E-2s due to smaller sample sizes from select posts, and because rapid turnover at consular posts can affect continuity. There is no Department of State “Policy Manual” like the one at USCIS. As such, the Consular Officer, referring to the FAM only, has more discretion than the USCIS AO. The subjective E-2 requirements – namely substantiality and marginality – are subject to the assessment – whims - of individual Consular Officers. Conversely, a prima facie showing on an I-526 requires a Request for Evidence (RFE) as a matter of IPO policy. A Notice of Intent to Deny (NOID) or a denial at IPO requires supervisory concurrence. Additional review intuitively results in greater uniformity. The USCIS Policy Manual has been compiled, to some extent, based on the agency’s experience with the I-526. There is no similar repository of knowledge – human or documentary - at the Department of State. Therefore, E-2 success may depend on luck – which Consular Officer you get. Perhaps a Consular Officer who has been a home owner will treat an investment of $400,000 in a single building to be renovated as insubstantial, while a Consular Officer fresh out of graduate school who has never owned property or seen $400,000 in one place might think the money is fully “at risk.” Personal experiences are brought to the workplace even by USCIS AOs, but there are fewer institutional constraints on the C onsular O f f ic e r whe n ac ting on his or he r assessments. As such, predictions are harder for E-2s. DON’T BE SO SURE THAT YOU CAN RENEW AN E-2 FOREVER One might think E-2 visas can be renewed forever. However, Consular Officers have discretion as to duration of visa vs. reciprocity or validity period, and there are constraints related to reciprocity that must be explained to investors. For example, a Ukrainian E-2 visa is valid for only three months, and the visa holder gets only two entries. The Ukrainian reciprocity period for a B1/B2 visa is five years, and the visa holder gets multiple entries. That means that the Ukrainian E-2 visa holder can’t leave the United States and expect to return after three months, unless he or she renews - and every renewal poses a risk of denial. On the other hand, a Colombian gets a multiple entry E-2 visa with a five-year validity period. The majority of Colombian B1/B2 visa recipients receive a full validity EB5INVESTORS.COM 105